Consolidated Motion To Dismiss

Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 1 of 33 Page ID #:218
DAVIS WRIGHT TREMAINE LLP

THOMAS R. BURKE (State Bar No. 141930)
thomasburke@dwt.com
2
505 Montgomery Street, Suite 800
3 San Francisco, CA 94111-6533
Telephone: (415) 276-6500
4 Fax: (415) 276-6599
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DAN LAIDMAN (State Bar No. 274482)
danlaidman@dwt.com
DIANA PALACIOS (State Bar No. 290923)
dianapalacios@dwt.com
865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
Telephone: (213) 633-6800
Fax: (213) 633-6899
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Attorneys for Defendant

11 Joseph Teixeira
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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CITY OF INGLEWOOD, a public entity, )

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Plaintiff,
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vs.
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JOSEPH TEIXEIRA and Does 1-10,
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Defendants.
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Case No. 2:15-cv-01815-MWF-MRW

Assigned to the Hon. Michael Fitzgerald
CONSOLIDATED REPLY IN
SUPPORT OF DEFENDANTS
MOTION TO DISMISS
PLAINTIFFS COMPLAINT AND
MOTION TO STRIKE REQUEST
FOR ATTORNEYS FEES
[Fed. R. Civ. P. 12(b)(6); 12(f)]
Hearing Date: June 22, 2015
Time:
10:00 a.m.
Courtroom: 1600
Action Filed: March 12, 2015
Defendant Joseph Teixeira respectfully submits this Consolidated Reply in
27
Support of his Motion to Dismiss (MTD) the Complaint of plaintiff City of
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Inglewood and his Motion to Strike (MTS) the Citys request for attorneys fees.
REPLY IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE
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TABLE OF CONTENTS
Page
2
3
I.
SUMMARY OF ARGUMENT ...................................................................... 1
II.
THE CITYS COMPLAINT IS BARRED AS A MATTER OF LAW......... 3
5
6
7
8
A.
The City Cannot Copyright Its Public Meeting Videos Under

State Law. ............................................................................................. 3
B.
Mr. Teixeiras Use Of Clips From City Council Meetings In His

Political Commentaries Is Independently Protected By The Fair
Use Doctrine. ........................................................................................ 8
1.
9
10
11
12
2.
13
Fair Use Applies To Mr. Teixeiras Videos As A

Matter Of Law. ........................................................................... 9
a.
The Allegedly Infringing Videos Are Incorporated By

Reference Into The Citys Complaint. ............................. 9
b.
Dismissal At The Pleading Stage Is Proper In This

Case. ............................................................................... 13
Each Statutory Factor Favors A Finding Of Fair Use. ............ 15
14
a.
The Purpose And Character Of The Use ....................... 16
15
b.
The Nature Of The Allegedly Copyrighted Works ....... 18
16
c.
The Amount And Substantiality Used ........................... 18
17
d.
The Effect On The Market ............................................. 19
18
III.
THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE. ...... 20
19
IV.
THE CITYS REQUEST FOR FEES SHOULD BE STRICKEN. ............. 21
20
V.
CONCLUSION ............................................................................................. 24
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865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899
TABLE OF AUTHORITIES
Page
2
3
4
Cases
Adjmi v. DLT Entertainment Ltd.,

--- F. Supp. 3d, 2015 WL 1499575 (S.D.N.Y. 2015) ...................................... 11, 13
6
7
8
9
Allen v. Scholastic,
739 F. Supp. 2d 642 (S.D.N.Y. 2011) ............................................................. 10, 11
Am. Geophysical Union v. Texaco Inc.,
60 F.3d 913 (2d Cir. 1994)..................................................................................... 16
10
Am. Prairie Const. Co. v. Hoich,

11
560 F.3d 780 (8th Cir. 2009) ................................................................................. 11
12
American Title Ins. Co. v. Lacelaw Corp.,

861 F.2d 224 (9th Cir. 1988) ................................................................................. 12
13
14
Arrow Productions, LTD. v. Weinstein Co. LLC,

44 F. Supp. 3d 359, 363 (S.D.N.Y. 2014) ....................................................... 10, 14
15
16
17
18
19
20
21
22
Basic Books, Inc. v. Kinkos Graphics Corp.,

758 F. Supp. 1522 (S.D.N.Y. 1991) ...................................................................... 16
Bogie v. Rosenberg,
705 F.3d 603 (7th Cir. 2013) ................................................................................. 14
Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687 (7th Cir. 2012) ....................................................................... 9, 14, 15
Building Officials & Code Adm. v. Code Technology, Inc.,
628 F.2d 730 (1st Cir. 1980) .................................................................................... 4
23
Burnett v. Twentieth Century Fox Film Corp.,

24
491 F. Supp. 2d 962 (C.D. Cal. 2007) ............................................................ passim
25
Burrow-Giles Lithographic Co. v. Sarony,

111 U.S. 53 (1884) ................................................................................................. 18
26
27
28
Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569 (1994) ......................................................................................... 19, 20
ii

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Campbell v. Walt Disney Co.,

718 F. Supp. 2d 1108 (N.D. Cal. 2010) ................................................................. 10
2
3
4
5
6
7
Canal+ Image UK Ltd. v. Lutvak,

773 F. Supp. 2d 419 (S.D.N.Y. 2011) ................................................................... 10
Car-Freshner Corp. v. Getty Images, Inc.,
822 F. Supp. 2d 167 (N.D.N.Y. 2011) ................................................................... 12
Cariou v. Prince,
714 F.3d 694 (2d Cir. 2013)..................................................................................... 9
Cohen v. California,
9
403 U.S. 15 (1971) ................................................................................................... 2
10
Consumer Solutions REO, LLC v. Hillery,

658 F. Supp. 2d 1002 (N.D. Cal. 2009) ................................................................. 23
11
12
County of Santa Clara v. Superior Court,

170 Cal. App. 4th 1301 (2009) ....................................................................... passim
13
14
15
16
17
18
19
20
Daly v. Viacom, Inc.,

238 F. Supp. 2d 1118 (N.D. Cal. 2002) ................................................................. 14
DC Comics Inc. v. Reel Fantasy, Inc.,
696 F.2d 24 (2d Cir. 1982)..................................................................................... 20
Dos Santos v. Telemundo Commcns Grp., LLC,
2012 WL 9503003 (C.D. Cal. Dec. 19, 2012) ....................................................... 22
DuckHole Inc. v. NBC Universal Media LLC,
2013 U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013) .................................... 10
21
Duran v. Douglas,
22
904 F.2d 1372 (9th Cir. 1990) ................................................................................. 2
23
Faust v. Travelers,
55 F.3d 471 (9th Cir. 1995) ................................................................................... 12
24
25
26
27
28
Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,

499 U.S. 340 (1991) ............................................................................................... 18
Felix the Cat Prods. v. New Line Cinema,
2000 U.S. Dist. LEXIS 21763 (C.D. Cal. May 1, 2000) ....................................... 10
iii

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Fisher v. Dees,
794 F.2d 432 (9th Cir. 1986) ................................................................................... 9
2
Franchise Realty Interstate Corp. v. S.F. Local Joint Exec. Bd. of
Culinary Workers,
4
542 F.2d 1076 (9th Cir. 1976) ............................................................................... 21
3
Garcia v. Google, Inc.,

6
--- F.3d ----, 2015 WL 2343586 (9th Cir. May 18, 2015) (en banc) ............. 1, 3, 24
7
Gonzalez v. Planned Parenthood of L.A.,

759 F.3d 1112 (9th Cir. 2014) ............................................................................... 11
8
9
Hancock v. Hartford Life & Accident Ins. Co.,

2006 U.S. Dist. LEXIS 39774 (E.D. Cal. June 14, 2006) ..................................... 12
10
11
12
13
14
15
16
17
Hayes v. County of San Diego,

658 F.3d 867 (9th Cir. 2011) ................................................................................... 5
Hustler Magazine, Inc. v. Moral Majority, Inc.,
796 F.2d 1148 (9th Cir. 1986) ............................................................................... 18
In re Aimster Copyright Litigation,
334 F.3d 643 (7th Cir. 2003) ................................................................................... 4
In re Easysaver Rewards Litig.,
737 F. Supp. 2d 1159 (S.D. Cal. 2010) .................................................................. 12
18
Infinity Broadcast Corp. v. Kirkwood,

150 F.3d 104 (2d Cir. 1998)................................................................................... 16
19
20
Korematsu v. United States,

584 F. Supp. 1406 (N.D. Cal. 1984) ...................................................................... 11
21
22
23
24
25
26
27
28
LaSalle Nat. Bank v. First Connecticut Holding Group, L.L.C. XXIII,

287 F.3d 279 (3d Cir. 2002)................................................................................... 11
Leadsinger, Inc. v. BMG Music Publg,
512 F.3d 522 (9th Cir. 2008) ............................................................................. 9, 13
Los Angeles Times v. Free Republic,
2000 WL 565200 (C.D. Cal. Apr. 4, 2000) ..................................................... 16, 17
Los Angeles Unified School Dist. v. Superior Court,
151 Cal. App. 4th 759 (2007) ................................................................................ 19
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Mattel Inc. v. Walking Mt. Prods.,

353 F.3d 792 (9th Cir. 2003) ................................................................................. 17
2
3
4
5
6
7
Meeker v. Belridge Water Storage Dist.,

2006 U.S. Dist. LEXIS 91775 (E.D. Cal. Oct. 23, 2006) ...................................... 11
N. Cal. River Watch v. Fluor Corp.,
2014 U.S. Dist. LEXIS 141198 (N.D. Cal. Oct. 2, 2014) ..................................... 22
New.Net, Inc. v. Lavasoft,
356 F. Supp. 2d 1090 (C.D. Cal. 2004) ................................................................. 15
New York v. United States,

9
505 U.S. 144 (1992) ................................................................................................. 5
10
Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc.,

166 F.3d 65 (2d Cir. 1999)..................................................................................... 16
11
12
North County Parents Org. v. Dept of Education,

23 Cal. App. 4th 144 (1994) .................................................................................. 19
13
Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical
Reform,
15
868 F. Supp. 2d 962 (C.D. Cal. 2012) ................................................................... 17
14
16
17
Perfect 10, Inc. v. Amazon.com, Inc.,

508 F.3d 1146 (9th Cir. 2007) ............................................................................... 16
18
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,

602 F.3d 57 (2d Cir. 2010).............................................................................. passim
19
20
Pittsburg Unified School Dist. v. Calif. School Employees Assn,

166 Cal. App. 3d 875 (1985) ................................................................................... 2
21
Point Ruston, LLC v. Pac. Northwest Regional Council of the United
Broth. of Carpenters and Joiners of America,
23
658 F. Supp. 2d 1266 (W.D. Wash. 2009)............................................................. 11
22
24
25
Righthaven v. Realty One Group,

2010 WL 4115413 (D. Nev. Oct. 19, 2010) ............................................................ 9
26
Ryman v. Sears, Roebuck & Co.,

27
505 F.3d 993 (9th Cir. 2007) ............................................................................... 1, 2
28

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Said v. Cnty. of San Diego,

2013 WL 2120866 (S.D. Cal. May 15, 2013).................................................. 21, 23
2
3
4
5
6
7
Santa Clara, County of v. Superior Court,

2009 Cal. LEXIS 4728 (May 13, 2009)................................................................... 5
Savage v. Council on American-Islamic Relations,
2008 U.S. Dist. LEXIS 60545 ............................................................... 9, 10, 17, 20
Sedgwick Claims Management Servs. v. Delsman,
2009 U.S. Dist. LEXIS 61825 (N.D. Cal. July 17, 2009)........................................ 9
Sierra Club v. Superior Court,

9
57 Cal. 4th 157 (2013) ............................................................................................. 5
10
Sofa Entmt, Inc. v. Dodger Prods.,

709 F.3d 1273 (9th Cir. 2013) ............................................................................... 20
11
12
Sony Computer Entertainment, Inc. v. Connectix Corp.,

203 F.3d 596 (9th Cir. 2000) ................................................................................. 16
13
14
15
16
17
18
19
20
Sperry v. State of Fla. ex rel. Florida Bar,

373 U.S. 379 (1963) ................................................................................................. 4
Sprewell v. Golden State Warriors,
266 F.3d 979 (9th Cir. 2001) ................................................................................... 3
Steckman v. Hart Brewing,
143 F.3d 1293 (9th Cir. 1998) ........................................................................ passim
Techniques, Inc. v. Rohn,
592 F. Supp. 1195 (S.D.N.Y. 1984) ........................................................................ 7
21
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

22
551 U.S. 308 (2007) ................................................................................................. 9
23
Trenton v. New Jersey,

262 U.S. 182 (1923) ................................................................................................. 4
24
25
26
27
28
U.S. ex rel. Twentieth Century-Fox Film Corporation v. Bouve,

33 F. Supp. 462 (D.D.C. 1940) ................................................................................ 7
United States v. Ford,
650 F.2d 1141 (9th Cir. 1981) ............................................................................... 22
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United States v. Kaipat Pelisamen,

641 F.3d 399 (9th Cir. 2011) ................................................................................. 12
2
3
4
5
6
7
United States v. S. Cal. Edison Co.,

300 F. Supp. 2d 964 (E.D. Cal. 2004) ................................................................... 11
Vestar Dev. II, LLC v. Gen. Dynamics Corp.,
249 F.3d 958 (9th Cir. 2001) ............................................................................... 5, 6
Washington Post Co. v. Keogh,
365 F.2d 965 (D.C. Cir. 1966) ............................................................................... 21
Whittlestone, Inc. v. Handi-Craft Co.,

9
618 F.3d 970 (9th Cir. 2010) ........................................................................... 21, 22
10
Yeager v. Corr. Corp. of Am.,

2012 U.S. Dist. LEXIS 43029 (E.D. Cal. Mar. 28, 2012) ..................................... 23
11
12
Zella v. E.W. Scripps Co.,

529 F. Supp. 2d 1124 (C.D. Cal. 2007) ..................................................... 12, 13, 14
13
14
Statutes
15
17 U.S.C.
412 ........................................................................................................... 21, 22, 23
16
505 ....................................................................................................................... 21
17
California Government Code

6250 et seq. ......................................................................................................... 6
6253(b) ............................................................................................................ 6, 19
19
6254.9 .................................................................................................................... 7
20
6257.5 .................................................................................................................... 6
21
54950 et seq. ....................................................................................................... 6
54953.5(b) ....................................................................................................... 6, 19
18
22
23
Rules
Federal Rules of Civil Procedure

12(b)(6) ........................................................................................................... passim
25
12(f) ............................................................................................................ 21, 22, 23
26
56 ................................................................................................................ 13, 14, 15
24
27
Federal Rules of Evidence 901(b)(1) .......................................................................... 12
28
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Constitutional Provisions
California Constitution, Article 1, 3(b) ...................................................................... 6
United States Constitution, First Amendment .................................................. 2, 21, 24
4
5
6
Other Authorities
4 William F. Patry, Patry on Copyright 4:81 (2015) ................................................. 4
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES

I.
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3
SUMMARY OF ARGUMENT
Last month the Ninth Circuit emphatically held that a weak copyright claim
cannot justify censorship in the guise of authorship. Garcia v. Google, Inc., --- F.3d
----, 2015 WL 2343586 (9th Cir. May 18, 2015) (en banc). In this case, the City of
Inglewood is misusing copyright law to punish a citizen for criticizing his
government, and its claim is not just weak, it is non-existent.
8
9
In its Opposition, the City ignores virtually all of the controlling authorities
cited by Mr. Teixeira that show why its claim fails as a matter of law. It also
10
overlooks the actual contents of Mr. Teixeiras videos, despite having specifically
11
identified and linked to these works in its own Complaint. Because these videos are
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incorporated by reference into the Citys pleading they are properly before the Court,
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and their contents supersede any contrary descriptions in the Complaint. Avoiding
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discussion of all of the dispositive issues, the City cannot salvage this meritless
15
action for several reasons.
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First, the City concedes that it has no specific authority to copyright public
17
records documenting its City Council meetings, and thus its claim is barred by
18
California law. See County of Santa Clara v. Superior Court, 170 Cal. App. 4th
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1301, 1335 (2009). The City makes no effort to distinguish County of Santa Clara or
20
to question its holding. The Citys failure to counter this decision is fatal to its claim:
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where, as here, there is relevant precedent from the states intermediate appellate
22
court, and no convincing evidence that the state supreme court would decide
23
differently, the federal court must follow the state intermediate appellate court
24
decision. Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007).
25
The Citys only argument on this point is misguided, as the Supremacy Clause
26
is not implicated by a states decision not to assert copyright in its own works. See
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Section II.A. This is why every authority to consider the issue has recognized that
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states can choose to favor broad public access to public records over copyright absent
special circumstances, as California has explicitly done. See id.; MTD at 9-14.
Second, the City fails to counter Mr. Teixeiras showing that its attempt to use
copyright to limit his use of City Council meeting videos as a vehicle to comment on
political affairs is contrary to public policy and inconsistent with California law,
which maximizes public access to such government records. See Section II.A; MTD
at 12-14.
Third, to avoid a finding of fair use, the City ignores the actual content of the
8
9
videos and merely repeats its conclusory allegations that they are unaltered
10
verbatim copies of the original City Council meeting videos. E.g., Opp. at 11-14.
11
But the City contradicts itself elsewhere in its Opposition, where it necessarily admits
12
that Mr. Teixeira adulterates the meeting videos by manipulating and adding
13
derogatory comments in order to criticize the City. Opp. at 1, 8.1 Either way, the
14
Citys characterizations of Mr. Teixeiras videos are irrelevant, because even in the
15
context of a motion to dismiss, the works themselves supersede and control contrary
16
descriptions of them, including any contrary allegations in the pleadings. Peter
17
F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010).
18
Consequently, this Court is not required to accept as true the Citys conclusory
19
allegations which are contradicted by documents referred to in the complaint.
20
Steckman v. Hart Brewing, 143 F.3d 1293, 1295-96 (9th Cir. 1998) (affirming
21
dismissal of action pursuant to Fed. R. Civ. P. 12(b)(6)).
22
///
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24
25
26
27
28
These comments reveal the Citys true purpose Inglewood officials find
Mr. Teixeiras criticism offensive, and want him silenced. But [p]ublic office is no
place for the thin-skinned. Those who function in the public arena must be prepared
to withstand . the protest and controversy which their actions and statements
have generated. Pittsburg Unified School Dist. v. Calif. School Employees Assn,
166 Cal. App. 3d 875, 899 (1985). Under the First Amendment, speech cannot be
proscribed because it is offensive, Cohen v. California, 403 U.S. 15, 25 (1971), or
critical of public officials, Duran v. Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).
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The City necessarily refers to Mr. Teixeiras videos in its Complaint because
1
2
they form the basis for its copyright claim, and it has even gone a step further and
provided links to the six allegedly infringing videos at issue. See Cmplt. 19. The
contents of these videos are therefore part of the Complaint, and the City cannot
simply ignore them. See Section II.B.1. While the City may now regret its decision
to link to them, Mr. Teixeiras videos are quintessential examples of fair use and the
law is clear that a plaintiff can plead himself out of a claim by including
unnecessary details contrary to his claims. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001). The City has done just that.
Fourth, the Citys Orwellian claim that it is championing free speech by trying
10
11
to quash it does not withstand scrutiny. E.g., Opp. at 1-2. Copyright promotes
12
creativity by protecting the commercial interest of the author, but claims such as
13
the Citys, designed to suppress a derogatory work are untethered fromand
14
incompatible withcopyright and copyrights function as the engine of expression.
15
Garcia, 2015 WL 2343586, at *8-9 (quotations omitted). These principles guide the
16
fair use inquiry here, as state law bars the City from making any money from the sale
17
of its City Council meeting videos. See Section II.B.2. Nor could Mr. Teixeiras
18
highly transformative, bitingly critical videos possibly supplant the market for the
19
Citys unadorned meeting videos, if one could even exist. Id.

Because the City has no copyright interest in its City Council meeting videos,
20
21
and even if it did this would be a classic case of fair use, the Complaint should be
22
dismissed with prejudice. See Section III. If the case proceeds, the Court should
23
strike the Citys defective request for attorneys fees. See Section IV.
II.
24
25
26
27
A.
THE CITYS COMPLAINT IS BARRED AS A MATTER OF LAW.

The City Cannot Copyright Its Public Meeting Videos Under State Law.
The City concedes that the California Court of Appeals decision in County of
Santa Clara is on point, and thus that state law precludes it from copyrighting video
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recordings of its City Council meetings. Opp. at 17-19. The Citys only argument is
that it is not bound by state law, which is incorrect. Id.2
First, every authority to address this issue has recognized that works of state
and local government can only be copyrighted depending on state law and policy,
and subject to exceptions dictated by public policy. Building Officials & Code
Adm. v. Code Technology, Inc., 628 F.2d 730, 735-36 (1st Cir. 1980). The reason is
clear: [s]tates may refuse to permit assertion of copyright in state-created works
because copyright is never imposed. 4 William F. Patry, Patry on Copyright 4:81
(2015). See generally In re Aimster Copyright Litigation, 334 F.3d 643, 652 (7th
10
Cir. 2003) (recognizing that artists may choose not to copyright their works in order
11
to broaden their audience). In other words, a state can forgo securing copyright
12
protection in its own works, the same as any private individual or entity.
13
Because the key issue here is how California has chosen to proceed with
14
respect to its own public records, the Citys invocation of the Supremacy Clause is a
15
non-sequitur. The only authority that the City cites involves states attempting to
16
regulate the conduct of others in a manner that conflicts with federal prerogatives.
17
For example, in Sperry v. State of Fla. ex rel. Florida Bar, 373 U.S. 379 (1963), the
18
Court held that Florida could not prohibit a private attorney from practicing before
19
the United States Patent Office because he lacked a Florida law license. Id. at 384.
20
Consequently, the Sperry decision might be relevant if this were a case in which
21
California law purported to limit some other private individual or entitys ability to
22
obtain and hold copyrights contrary to federal law, but that is not the situation.
23
24
Instead, this is a case in which California has adopted a constitutional and

statutory scheme that maximizes public access to its own public records, and that is
25
26
The City alleges that it is a municipality incorporated under the laws of the
State
of
California in statutory compliance with California law. Cmplt. 9, 16.
27
A municipal corporation is simply a political subdivision of the State. Trenton v.
28 New Jersey, 262 U.S. 182, 189 (1923).
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plainly incompatible with one of its political subdivisions trying to use copyright to
limit such access. MTD at 9-14. To the extent that federalism concerns are relevant
at all here, they cut against the Citys position. California cannot be compelled
through the Copyright Act to allow its political subdivisions to copyright any and all
public records in violation of state law and policy. See New York v. United States,
505 U.S. 144, 166 (1992) (even where Congress has the authority under the
Constitution to pass laws requiring or prohibiting certain acts, it lacks the power
directly to compel the States to require or prohibit those acts).
Second, the City erroneously asserts that the County of Santa Clara opinion is
10
non-precedential. Opp. at 17. To the contrary, [i]n deciding an issue of state law,
11
when there is relevant precedent from the states intermediate appellate court, the
12
federal court must follow the state intermediate appellate court decision unless the
13
federal court finds convincing evidence that the states supreme court likely would
14
not follow it. Hayes v. County of San Diego, 658 F.3d 867, 870 (9th Cir. 2011)
15
(emphasis added). [W]here there is no convincing evidence that the state supreme
16
court would decide differently, a federal court is obligated to follow the decisions of
17
the states intermediate appellate courts. Vestar Dev. II, LLC v. Gen. Dynamics
18
Corp., 249 F.3d 958, 960 (9th Cir. 2001) (quotation omitted; emphasis added).
19
The City has presented no evidence that the California Supreme Court would
20
disagree with the County of Santa Clara decision.3 It does not distinguish the case, or
21
explain how the opinion is wrongly decided. Opp. at 15-19. As set forth in Mr.
22
Teixeiras Motion, the Court of Appeals well-reasoned decision is fully supported
23
by state and federal law, and is consistent with authority from other jurisdictions as
24
well. MTD at 10-12. Moreover, the City does not dispute any of the key features of
25
26
The California Supreme Court denied requests to de-publish the County of

Santa
Clara
decision, leaving it intact as a binding precedent, Santa Clara, County of
27
v. Superior Court, 2009 Cal. LEXIS 4728, at * 1 (May 13, 2009), and it has cited the
28 opinion favorably, Sierra Club v. Superior Court, 57 Cal. 4th 157, 176 (2013).
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Californias governing public records and open meetings laws that are fundamentally
incompatible with a municipality asserting copyright to limit access to its video
recordings of City Council meetings:
The state Constitution, Brown Act, and CPRA maximize public access to
government information, and require that any limits on access be narrowly construed.
Cal. Const. Art. 1, 3(b); Govt Code 6250 et seq., 54950 et seq., MTD at 13-14.
Unlike some other states, Californias public records law contains no
exception authorizing restrictions on public access based on copyright. MTD at 11.
9
10
11
12
13
California limits agencies to charging no more than the direct costs of

duplication for copies of public records. Govt Code 6253(b); MTD at 11, 13.
California prohibits agencies from limiting access to public records based on
the purpose of the request. Govt Code 6257.5; MTD at 11.
California law specifically authorizes certain public agencies to copyright
14
certain enumerated items, in statutes that would all be superfluous if any agency
15
could copyright any public record, as the City claims. MTD at 11-12.
16
The Brown Act specifies that video recordings of public meetings are public
17
records that must be available for public viewing free of charge, and that are subject
18
to disclosure under the CPRA. Cal. Govt Code 54953.5(b); MTD at 13.
19
The City does not address any of these provisions. Compare MTD at 9-14,
20
with Opp. 15-19. Nor does it offer an explanation for how this constitutional and
21
statutory regime could be reconciled with its attempt to use copyright to restrict
22
public access to City Council meeting videos. Id. Because the City has not come
23
close to presenting convincing evidence that the California Supreme Court would
24
disagree with the Court of Appeals well-reasoned, controlling decision in County of
25
Santa Clara, the federal court is obligated to follow that decision, which is fatal to
26
this lawsuit, as the City essentially concedes. Vestar, 249 F.3d at 960; Opp. at 17-19.
27
28
Third, with no authorities to support its novel copyright claim, the City relies
instead on anecdotal examples of items that agencies have registered with the
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Copyright Office. Opp. at 16-17. But registrations are not binding authorities. See
Techniques, Inc. v. Rohn, 592 F. Supp. 1195, 1197 (S.D.N.Y. 1984) (Registrations
validity is subject to judicial review and may be attacked by a defendant in an
infringement action); U.S. ex rel. Twentieth Century-Fox Film Corporation v.
Bouve, 33 F. Supp. 462, 463 (D.D.C. 1940) (any finding of fact or conclusion of
law on the part of the Register of Copyrights are not binding upon the court).
And in any event, the Citys examples are also consistent with Mr. Teixeiras
position. As discussed in the Motion, the California Legislature knows how to
explicitly authorize public bodies to secure copyrights when it means to do so.
10
MTD at 11 (quoting County of Santa Clara, 170 Cal. App. 4th at 1333). Numerous
11
statutes authorize public agencies to copyright particular items, which is compelling
12
evidence that such specific authorization is required for a California agency to secure
13
copyright protection in a public record. See statutes cited at MTD at 10-11. The fact
14
that the City was only able to identify six instances in which California public
15
agencies have registered copyrights is consistent with this regime in which copyright
16
in public records is the exception, not the rule. Opp. at 16-17.
17
Similarly, the Citys discussion of its meter reading software and lawsuit
18
against the City of Chicago does not support its insistence that its videos of its City
19
Council proceedings are protected by copyright. Opp. at 17. There, the City brought
20
a copyright infringement lawsuit based on a parking ticket software system that it had
21
developed. City of Inglewood v. City of Chicago, C.D. Cal. No. 2:02-cv-04594-DT-
22
AJWX, Dkt. # 30 (Order on Motion to Dismiss, Dec. 9, 2002). But unlike videos of
23
City Council proceedings, the CPRA makes clear that [c]omputer software
24
developed by a state or local agency is not itself a public record under this chapter,
25
and an agency may sell, lease, or license the software for commercial or
26
noncommercial use. Cal. Govt Code 6254.9.
27
In County of Santa Clara, the court examined this provision and held that the
28
referenced copyright protection is limited to computer software, and that the statute
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recognizes the availability of copyright protection for software in a proper case,
[but] provides no statutory authority for asserting any other copyright interest. 170
Cal. App. 4th at 1333-34 (emphasis added). The City cannot rely on its copyright for
a software program that is not even a public record as authority for its unprecedented
attempt to use copyright to control public records of City Council meetings.

Where it makes sense for public agencies to copyright works like computer
6
7
software or other comparable items, the Legislature has enacted statutes that
expressly recognize such protection. See MTD at 11-12. This shows that specific
authorization is required for a California public agency to copyright a public record.
10
Id. The City offers no response to this decisive point. See Opp. at 15-19.
Finally, the City avoids acknowledging the nature of the public records at issue
11
12
here. This is not a case about parking meter software, Cash Wiz Cash Management
13
Software, historical crime scene photographs, or a book about green building. Opp.
14
at 16-17. The City is trying to use copyright to punish a citizen for using public
15
records that document official proceedings where public policy is discussed and laws
16
are made. The City does not and cannot cite to any authority permitting such
17
behavior. To the contrary, it has been well-established for over a century that
18
copyright cannot block access to such records that directly implicate democratic self-
19
governance. See MTD at 14 n.9.
20
For all of these reasons, California law does not permit the City to obtain or
21
hold a copyright in its recordings of City Council meetings, and therefore its claim
22
against Mr. Teixeira fails as a matter of law and should be dismissed with prejudice.
23
B.
Mr. Teixeiras Use Of Clips From City Council Meetings In His Political
24
Commentaries Is Independently Protected By The Fair Use Doctrine.
25
The videos giving rise to this litigation are paradigmatic examples of fair use.
26
Mr. Teixeira has taken brief clips from the Citys lengthy original public meeting
27
videos, overlaid them with his original text and narration, interspersed them with his
28
original footage, and presented them in an entirely new context where the clear
8

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purpose is to criticize the public statements and behavior of City officials at
Inglewood Council meetings. See Ex. A; MTD at 5-8. The City does not identify
any case in which works of this kind have been deemed infringing, and courts have
consistently held that such transformative works are deserving of fair-use protection
as a matter of law. Fisher v. Dees, 794 F.2d 432, 440 (9th Cir. 1986).
1.
Fair Use Applies To Mr. Teixeiras Videos As A Matter Of Law.
The City makes no effort to distinguish any of the numerous authorities cited
by Mr. Teixeira that support this Courts ability to dismiss this lawsuit on the basis of
fair use at the pleading stage. See MTD at 8-9, 16-17; RJN at 2-3.4 Instead, it is
10
seeking to prolong the litigation (and hence the chilling effect on Mr. Teixeiras
11
speech, see Section III) by ignoring the transformative content of the videos. But the
12
City cannot escape the consequences of its own pleading.

a.
13
Reference Into The Citys Complaint.
14
15
The Allegedly Infringing Videos Are Incorporated By
The Court can consider Mr. Teixeiras videos (and the YouTube pages that
16
display them) because they are incorporated by reference into the Citys Complaint.
17
See MTD at 8-9, 16-17.5 Citing no authority, the City claims that the only
18
19
20
21
22
23
24
25
26
27
28
E.g., Leadsinger, Inc. v. BMG Music Publg, 512 F.3d 522, 530 (9th Cir.
2008); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690-92 (7th Cir.
2012); Cariou v. Prince, 714 F.3d 694, 707 (2d Cir. 2013); Burnett v. Twentieth
Century Fox Film Corp., 491 F. Supp. 2d 962, 966 (C.D. Cal. 2007); Savage v.
Council on American-Islamic Relations, 2008 U.S. Dist. LEXIS 60545, at *2-3; 87
U.S.P.Q.2D 1730 (N.D. Cal. 2008); Sedgwick Claims Management Servs. v.
Delsman, 2009 U.S. Dist. LEXIS 61825, at *20-21 (N.D. Cal. July 17, 2009);
Righthaven v. Realty One Group, 2010 WL 4115413, *3 (D. Nev. Oct. 19, 2010).
5
Mr. Teixeira also brought a Request for Judicial Notice out of an abundance
of caution because some courts have combined the incorporation by reference and
judicial notice inquiries. See, e.g., RJN at 2-3. But these are separate bases for
considering the videos. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007) (when ruling on Rule 12(b)(6) motions to dismiss documents
incorporated into the complaint by reference, and matters of which a court may take
judicial notice may be considered); Burnett, 491 F. Supp. 2d at 967 (same).
Therefore, while judicial notice of these materials is proper, the Court can
independently consider them under the incorporation by reference doctrine. Id.
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documents incorporated by reference are the copyright applications of the City.
Opp. at 23. But courts have consistently held that the allegedly infringing works that
are the basis of a copyright claim are integral to the complaint, and thus
incorporated by reference therein. Canal+ Image UK Ltd. v. Lutvak, 773 F. Supp. 2d
419, 427 (S.D.N.Y. 2011) (granting 12(b)(6) motion and dismissing copyright claim
by considering content of allegedly infringing work not attached to the complaint).
As this Court explained in DuckHole Inc. v. NBC Universal Media LLC, 2013
U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013), the allegedly infringing works
form the basis of Plaintiffs claim of copyright infringement, therefore the Court
10
may properly consider the content of the show as documentary facts whose contents
11
are alleged in [the] Complaint even though the plaintiff did not attach the show to
12
the complaint. Id. at *9 (quotation omitted). The same is true here: because the
13
Citys claim relies on the contents of the six allegedly infringing videos that it
14
specifically references and links to in its pleading (see Cmplt. 19), the contents of
15
those videos are incorporated into the Complaint.6
16
Because the contents of Mr. Teixeiras videos are part of the Citys pleading,
17
the Citys allegations that these works are unaltered copies of entire verbatim
18
City Council meeting videos (Opp. at 14), must be disregarded. In copyright
19
infringement actions, the works themselves supersede and control contrary
20
descriptions of them, including any contrary allegations, conclusions or descriptions
21
of the works contained in the pleadings. Peter F. Gaito Architecture, 602 F.3d at 64
22
(quotations omitted). This is not unique to copyright: when ruling on any motion to
23
dismiss under Rule 12(b)(6), the Court is not required to accept as true conclusory
24
6
See also Burnett, 491 F. Supp. 2d at 966 (allegedly infringing work

incorporated by reference); Campbell v. Walt Disney Co., 718 F. Supp. 2d 1108,
26 1111 n.3 (N.D. Cal. 2010) (same); Felix the Cat Prods. v. New Line Cinema, 2000
U.S. Dist. LEXIS 21763, at *4 (C.D. Cal. May 1, 2000) (same); Savage, 2008 U.S.
27 Dist. LEXIS 60545, at *6 (same); Arrow Productions, LTD. v. Weinstein Co. LLC,
44 F. Supp. 3d 359, 363 (S.D.N.Y. 2014) (same); Allen v. Scholastic, 739 F. Supp.
28 2d 642, 645 n.1 (S.D.N.Y. 2011) (same).
25
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allegations which are contradicted by documents referred to in the complaint.
Steckman, 143 F.3d at 1295-96. See also Gonzalez v. Planned Parenthood of L.A.,
759 F.3d 1112, 1115 (9th Cir. 2014) (if documents incorporated by reference into
the complaint conflict with allegations in the complaint, we need not accept those
allegations as true). Thus the allegations in the Citys Complaint are only deemed
true to the extent that they are consistent with the works themselves. Allen, 739 F.
Supp. 2d at 645 n.1 (emphasis added). See also Adjmi v. DLT Entertainment Ltd., --
- F. Supp. 3d ----, 2015 WL 1499575, at *13 (S.D.N.Y. 2015) (the Courts decision
is predicated on its review of the raw materials, not the parties proverbial labels;
10
finding fair use at pleading stage in copyright infringement action).
11
The Citys own authority on this point supports Mr. Teixeiras position. In
12
Meeker v. Belridge Water Storage Dist., 2006 U.S. Dist. LEXIS 91775 (E.D. Cal.
13
Oct. 23, 2006), the court took judicial notice of a contract that was referenced in the
14
complaint, explaining that a court may take judicial notice of a document relied
15
upon in the complaint and/or matters of public record outside the pleadings, without
16
converting a motion to dismiss into a motion for summary judgment. Id. at *26.
17
The City erroneously relies on other cases in which incorporation by reference was
18
not even at issue. E.g., LaSalle Nat. Bank v. First Connecticut Holding Group,
19
L.L.C. XXIII, 287 F.3d 279, 282 (3d Cir. 2002) (court imposed sanctions by
20
improperly judicially noticing the contents of a telephone conversation).7
21
The City cannot rely on inapposite cases in which there were specific reasons
22
to doubt that items submitted were the same ones referenced in the complaint; none
23
involve a situation like this where the plaintiff links to the works in its own pleading.
24
7
Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 796-98 (8th Cir. 2009), Point
Ruston, LLC v. Pac. Northwest Regional Council of the United Broth. of Carpenters
26 and Joiners of America, 658 F. Supp. 2d 1266, 1279 (W.D. Wash. 2009), United
States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 974-76 (E.D. Cal. 2004), and
27 Korematsu v. United States, 584 F. Supp. 1406, 1415 (N.D. Cal. 1984), all cited by
the City (Opp. at 6-7), are similarly irrelevant as none of these cases address
28 incorporation by reference.
25
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Opp. at 23.8 For this same reason, the City cannot question the accuracy of these
videos: it provided the URL addresses for the YouTube pages that display them, and
it alleges that Mr. Teixeira made them available on those pages and that those videos
constitute the purported infringement at issue. Cmplt. 19. These are judicial
admissions which are binding on the City. American Title Ins. Co. v. Lacelaw
Corp., 861 F.2d 224, 226 (9th Cir. 1988) ([f]actual assertions in pleadings are
considered judicial admissions conclusively binding on the party who made them);
see also Faust v. Travelers, 55 F.3d 471, 474 (9th Cir. 1995) (party bound by judicial
admission in complaint). Bound by its own admissions, the City cannot now deny
10
11
that these are the videos at issue in this case.9

Nor can the City claim that its Complaint is incomplete and speculate that
12
other unidentified infringing works might hypothetically exist. Opp. at 23. The
13
court rejected this same argument in Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124
14
(C.D. Cal. 2007). As the City does here, the plaintiffs in that case tried to oppose
15
dismissal under Rule 12(b)(6) with speculation that some episodes of the
16
defendants television show that were not before the Court may contain infringing
17
content. Id. at 1132. The court explained that as masters of their Complaint,
18
Plaintiffs must allege the best facts for their case, and [p]resumably, Plaintiffs have
19
20
21
22
23
24
25
See In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1168-69, n.5 (S.D.
Cal. 2010) (case concerned the dynamic nature of internet shopping and the web
pages at issue were programmed to rotate different relevant images at different
times); Hancock v. Hartford Life & Accident Ins. Co., 2006 U.S. Dist. LEXIS 39774,
at *11-12 (E.D. Cal. June 14, 2006) (refusing to consider insurance plan defendants
submitted for first time on reply because of reasons to question its accuracy); CarFreshner Corp. v. Getty Images, Inc., 822 F. Supp. 2d 167, 175 (N.D.N.Y. 2011)
(unclear if web pages submitted in trademark and unfair competition action were the
same pages viewed by consumers in the relevant time period in the complaint).
9
The City has not submitted any evidentiary objections and thus it effectively
concedes
the authenticity of the videos in Exhibit A and screenshots in Exhibit B, as
26
it must. But Mr. Teixeira has properly authenticated these exhibits in any event. See
27 Teixeira Decl. 2-4; United States v. Kaipat Pelisamen, 641 F.3d 399, 411 (9th Cir.
2011) (evidence may be authenticated by the testimony of a witness with knowledge
28 of the matter in question) (citing Fed. R. Evid. 901(b)(1)).
12

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done so by alleging the content of the episodes they believe most substantially
resemble their work. Id. The same is true here, as the City chose to identify the six
allegedly infringing works at issue. It cannot evade dismissal by running away from
the facts that it chose to allege.

b.
Dismissal At The Pleading Stage Is Proper In This Case.
The City cites no authority to support its request to convert Mr. Teixeiras
Motion to Dismiss into one for summary judgment under Rule 56. Opp. at 3. It
overlooks cases holding that it is proper to dismiss a copyright infringement action at
the pleading stage where, as here, it is a clear case of fair use and no factual issues
10
need to be decided. E.g., Leadsinger, Inc. v. BMG Music Publg, 512 F.3d 522, 530
11
(9th Cir. 2008) (assertion of fair use may be considered on a motion to dismiss).
12
In this respect, this case is directly analogous to Burnett, in which the court
13
granted the defendants Rule 12(b)(6) motion and dismissed the plaintiffs copyright
14
claim with prejudice. 491 F. Supp. 2d at 971-72. The allegedly infringing video was
15
incorporated by reference into the complaint, providing the court with all that it
16
needed to determine that it was a fair use as a matter of law. Id.; See also cases cited
17
at MTD at 16-17.10 The Southern District of New Yorks recent decision in Adjmi is
18
also instructive. There, a playwright sought a declaratory judgment that his parodic
19
play made fair use of elements of the television show Threes Company. Id. 2015
20
WL 1499575 at *1. The court resolved the case on the pleadings based on its review
21
of DVDs of episodes of Threes Company and the script for the play, which were
22
incorporated by reference into the pleadings. Id. at *13. The court held that the play
23
was a protected fair use as a matter of law, and that the playwrights motion for
24
judgment on the pleadings need not be converted to a motion for summary
25
judgment, and further discovery is unnecessary. Id. at *14.
26
10
The case for finding fair use as a matter of law is even stronger here than in
Burnett, as even apart from the content of the videos, California law makes clear that
there can be no commercial market at all for the Citys videos of its City Council
28 meetings. See Section II.B.2.d.
27
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Likewise, in Arrow Productions, LTD. v. Weinstein Co. LLC, 44 F. Supp. 3d
359 (S.D.N.Y. 2014), the court held at the pleading stage that the defendants film
Lovelace made fair use of parts of the plaintiffs film Deep Throat. Id. at 363.
The court rejected the plaintiffs argument that the court should not make a fair use
determination at this stage in the litigation, because there are factual questions that
must be addressed through discovery. Id. at 367. In terms that apply equally to this
case, the court explained that there is a complete factual record before the court and
discovery would not provide any additional relevant information in this inquiry. All
that is necessary for the court to make a determination as to fair use are the two films
10
at issue. Id. at 368. See also Brownmark, 682 F.3d at 691-92 (copyright claim
11
properly dismissed at the pleading stage on basis of fair use without any discovery).11
12
Indeed, the City does not identify any factual issue that needs to be developed
13
through discovery before Mr. Teixeiras fair use defense can be resolved. Opp. at 23.
14
As in the cases discussed above, this is an obvious case of fair use (Brownmark,
15
682 F.3d at 692), in which it is clear from reviewing the Citys original City Council
16
meeting videos and Mr. Teixeiras works that his videos are highly transformative
17
political commentaries, and that all four factors overwhelmingly favor a finding of
18
fair use. See MTD at 17-25; Section II.B.2, infra. Moreover, under the unique
19
circumstances of this case, this Court could even hold that Mr. Teixeiras videos are
20
protected by fair use without reviewing them. As California law expressly bars the
21
22
23
24
25
26
27
28
11
In Brownmark, the Seventh Circuit affirmed the dismissal of the Complaint

under Rule 12(b)(6), but found that it should have been treated as a Rule 56 motion.
Id. at 692. This was based on the panels conclusion that the Seventh Circuit had not
yet endorsed incorporation by reference of videos, while it specifically noted that
courts in the Ninth Circuit have held that dismissal under Rule 12(b)(6) is proper on
that basis. Id. at 691 (citing Burnett, 491 F. Supp. 2d at 966; Zella, 529 F. Supp. 2d
at 1131-32; Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002)).
The Seventh Circuit subsequently held that videos can be incorporated by reference
and considered on a Rule 12(b)(6) motion. See Bogie v. Rosenberg, 705 F.3d 603,
609 (7th Cir. 2013). And in any event, the court in Brownmark held that even under
a Rule 56 standard, the plaintiff was still not entitled to any discovery because it was
clear from the videos themselves that it was an obvious case of fair use that could
be decided without discovery or a trial. Brownmark, 682 F.3d at 692.
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City from profiting from recordings of its public meetings, there is no commercial
market for them as a matter of law. See MTD at 13, 23-24; Section II.B.2.d, infra.
The City also concedes that Mr. Teixeira adulterates its meeting videos by
manipulating [them] and adding derogatory comments to criticize the City,
effectively admitting that they are transformative works. Opp. at 1, 8.
Because this Court can hold that Mr. Teixeiras videos are protected by fair
use based on the pleadings, the videos incorporated by reference therein, and
California law, without having to resolve any disputed factual issues, it is proper to
dismiss the Complaint under Rule 12(b)(6). And even assuming for the sake of
10
argument that the Court was inclined to treat Mr. Teixeiras Motion as one under
11
Rule 56, this matter can still be resolved at this early stage based on the Complaint
12
and the parties current submissions. Because the City cannot identify any disputed
13
factual issue that is necessary to the fair use inquiry, its request for discovery must be
14
denied for lack of good cause. See New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090,
15
1101 (C.D. Cal. 2004) (party seeking discovery to oppose Rule 56 motion must show
16
that discovery is essential to its opposition); Brownmark, 682 F.3d at 691
17
(discovery would only follow a Rule 56 motion if the district court granted a request
18
for discovery. District courts need not, and indeed ought not, allow discovery when
19
it is clear that the case turns on facts already in evidence).
20
2.
Each Statutory Factor Favors A Finding Of Fair Use.
21
It is apparent from reviewing Mr. Teixeiras videos that they are highly
22
transformative political commentaries that use brief, heavily modified clips from the
23
Citys public meeting videos to criticize Inglewood officials for their statements and
24
conduct at these official proceedings. See Cmplt. 19; Ex. A; MTD at 5-8, 17-25.
25
Disregarding the Citys conclusory allegations which are contradicted by documents
26
referred to in the complaint, Steckman, 143 F.3d at 1295-96, and focusing on the
27
works themselves, Peter F. Gaito Architecture, 602 F.3d at 64, it is clear that all four
28
factors favor a finding of fair use.

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a.
1
2
The Purpose And Character Of The Use
The City overlooks virtually all of the cases cited in Mr. Teixeiras Motion that
found fair use in analogous situations involving transformative works of political
criticism. Compare MTD at 18-21 with Opp. at 10-12.
The decisions that the City does rely on are readily distinguishable. For
example, Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998),
involved a service that simply retransmitted the plaintiffs unaltered radio
broadcasts over the telephone. Id. at 108. The defendant likened its own service to
a library photocopy machine, id. at 112,12 and the retransmissions [left] the
10
character of the original broadcasts unchanged. There [was] neither new expression,
11
new meaning nor new message. In short, there [was] no transformation. Id. at 108
12
(quotation and citation omitted). Courts have repeatedly distinguished Infinity
13
Broadcasting in cases such as this one, explaining that it merely involved a change
14
of format. Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596,
15
607 (9th Cir. 2000). See also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
16
1165 (9th Cir. 2007) (unlike the simple retransmission in Infinity Broadcasting,
17
Google uses Perfect 10s images in a new context to serve a different purpose).13
18
Likewise, in Los Angeles Times v. Free Republic, 2000 WL 565200 (C.D.
19
Cal. Apr. 4, 2000), the defendant re-posted the entire text of articles including
20
verbatim copies of articles from the Los Angeles Times and Washington Post
21
websites. Id. at *1. The defendants own evidence showed that, generally, exact
22
copies of whole or substantial portions of articles [were] posted. Id. at *6.
23
Moreover, the defendant re-posted the articles to inform its readers of the news of
24
12
Two of the cases that the City relies on literally involved photocopying. See
Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 924 (2d Cir. 1994); Basic
26 Books, Inc. v. Kinkos Graphics Corp., 758 F. Supp. 1522, 1530 (S.D.N.Y. 1991).
13
Similarly, Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166
27
F.3d 65 (2d Cir. 1999), concerned abstracts that presented direct translations of
28 articles that added almost nothing new in their works. Id. at 72.
25
16

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the day, not to criticize the manner in which the media reports that news thus
the defendants work served the same purpose as the original. Id. at *10.
By contrast, Mr. Teixeiras videos plainly use short clips from lengthy City
Council meetings heavily modified and interspersed with original text and audio, for
the entirely different purpose of criticizing officials for their conduct at these
proceedings. See MTD at 4-7, 18-21; Exs. A-F. This Court has held that this exact
type of modification renders a video transformative and protected by fair use,
Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.
Supp. 2d 962, 978 (C.D. Cal. 2012), and the Ninth Circuit has held that even entire
10
verbatim reproductions are justifiable where the purpose of the work differs from the
11
original, Mattel Inc. v. Walking Mt. Prods., 353 F.3d 792, 803 n.8 (9th Cir. 2003).
12
The City does not address these on-point authorities. Opp. at 10-12. It simply
13
repeats its allegations about Mr. Teixeiras videos being untransformed copies that
14
merely republished substantially all of Plaintiffs unaltered videotapes of its Council
15
meetings. Opp. at 11-12. These allegations must be disregarded because they are
16
contradicted by the videos themselves. Peter F. Gaito Architecture, 602 F.3d at 64;
17
Steckman, 143 F.3d at 1295-96. Indeed, the City admits that Mr. Teixeira
18
adulterates the meeting clips by manipulating and adding derogatory comments
19
overlaid on top of them in order to criticize the City. Opp. at 1, 8, 11. By
20
these arguments, the City effectively concedes the transformative nature of the
21
allegedly infringing videos, which makes this a clear case of fair use.14
22
23
24
25
26
27
28
14
The Citys claim that simply linking to its public meeting videos would be
sufficient assumes that it posts the videos online, but it does not allege this in the
Complaint. Opp. at 1. Moreover, this argument was squarely rejected in Savage v.
Council on American-Islamic Relations, 2008 U.S. Dist. LEXIS 60545 (N.D. Cal.
2008), where the court explained that it was not unreasonable for defendants to
provide the actual audio excerpts, since they reaffirmed the authenticity of the
criticized statements and provided the audience with the tone and manner in which
plaintiff made the statements. Id. at *15. The same is true here as Mr. Teixeiras
videos comment on the Mayors tone and manner and criticize particular
statements made at the City Council meetings. See Ex. A. The City does not dispute
that its meeting videos last for several hours (see MTD at 4-5, Exs. C-F). Linking to
an entire video would not identify the particular statements and conduct at issue.
17

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1
2
b.
The Nature Of The Allegedly Copyrighted Works
The City misconstrues this aspect of the fair use inquiry. It cites Feist
Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), and
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), but those cases
merely held that the works at issue were subject to copyright as a threshold matter;
they did not address fair use. Indeed, the Court noted in Feist that while the
telephone directory at issue could be copyrighted, the copyright in a factual
compilation is thin. 499 U.S. at 349. Thus subsequent courts have held that the
scope of fair use is greater when these informational works are involved.
10
Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-54 (9th Cir.
11
1986) (quotation omitted). The City overlooks this decisive point. Opp. at 12-13.
12
c.
The Amount And Substantiality Used
13
The Citys treatment of the third factor is based on erroneous characterizations
14
of Mr. Teixeiras videos which are contradicted by the works themselves and must be
15
disregarded. Opp. at 13-14; Peter F. Gaito Architecture, 602 F.3d at 64; Steckman,
16
143 F.3d at 1295-96. It is plain from reviewing the videos, which use short, heavily
17
modified clips of City Council meetings for harsh political criticism (Ex. A), that Mr.
18
Teixeira is not republishing unaltered copies of the original videos or archiving
19
verbatim copies of Plaintiffs entire works. Opp. at 14. As discussed above, the
20
City itself acknowledges that Mr. Teixeira adulterates and manipulate[es] the
21
meeting clips to criticize the City. Opp. at 1, 8, 11.
22
The City also misconstrues Mr. Teixeiras Motion, which does not argue that
23
he takes verbatim fifteen minute clips from the meeting videos. Opp. at 13. His
24
videos last between three and 15 minutes, most of which consists of original content
25
and commentary; the longest any Council meeting clip runs without audio or visual
26
modification by Mr. Teixeira is a little over a minute, while most of the unaltered
27
clips are far less than a minute. See MTD at 22-23; Ex. A. Meanwhile, the City does
28
not deny that its underlying City Council meeting videos last between two hours and
18

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37 minutes and four hours and forty minutes. See MTD at 4-5; Exs. C-F. As Mr.
Teixeira has used very brief clips from very long City Council meeting videos, and
the amount used is reasonable in relation to the purpose of his political criticism,
this factor strongly favors a finding of fair use. See Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 586 (1994).

d.
6
7
8
9
The Effect On The Market
In addressing the fourth factor, the City mischaracterizes both the videos at
issue and the governing law.
First, the City concedes, as it must, that its video recordings of City Council
10
meetings are public records, and California law prohibits it from making money from
11
the distribution of these videos. See Opp. at 14-15; Cmplt. 16; MTD at 23-24. It
12
claims that it has spent funds to have its Council meetings videotaped, and it can
13
recoup its expenses. Thus, there is harm to the City via its inability to recoup its
14
expenses. Opp. at 15. However, the CPRA limits public agencies to charging no
15
more than the direct costs of duplication for copies of public records. Cal. Govt
16
Code 6253(b) (emphasis added). The direct cost of duplication is the cost of
17
running the copy machine, and conceivably also the expense of the person operating
18
it. Direct cost does not include the ancillary tasks necessarily associated with the
19
retrieval, inspection and handling of the file from which the copy is extracted.
20
North County Parents Org. v. Dept of Education, 23 Cal. App. 4th 144, 148 (1994).
21
A public agencys expenditures in addition to the copying charges are
22
nonreimbursable indirect costs [that] are not significant in light of [its]
23
constitutionally mandated governmental function to disclose public records. Los
24
Angeles Unified School Dist. v. Superior Court, 151 Cal. App. 4th 759, 770 (2007).
25
26
The City would therefore be violating the law if it used fees for copies of its
public meeting videos to recoup its expenses from videotaping those meetings. Id.15
27
28
15
That the City can only charge fees to recover the cost of copying the videos
and not for making them in the first place is underscored by Cal. Govt Code
19
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Because it is only permitted to charge the direct cost of duplication, the only effect
that a third-partys distribution of the Citys public meeting videos could possibly
have would be to relieve the City of its copying costs. Consequently, there can be no
economic harm to the City here as a matter of law and this factor strongly favors fair
use even without any reference to the content of the videos at issue.16
Second, the City overlooks Mr. Teixeiras other dispositive argument, that his
6
7
acerbic videos criticizing City officials are obviously no substitute for the Citys
unvarnished, gavel-to-gavel recordings of its City Council meetings. Compare MTD
at 24 with Opp. at 14-15. The City recognizes that Mr. Teixeira adulterates the
10
Council meeting clips by manipulating and adding derogatory comments in order
11
to criticize the City. Opp. at 1, 8. Assuming that there could be a market for the
12
Citys videos, it is objectively unreasonable to conclude that the same viewers
13
looking for a straightforward document of the weeks City Council proceedings
14
would turn instead to Mr. Teixeiras strident critiques. See Campbell, 510 U.S. at
15
592 (there is no protectible derivative market for criticism). Because Mr.
16
Teixeiras videos are not a substitute for the original and do[] not deprive the
17
[purported] copyright holder of a derivative use, the fourth factor weighs in favor of
18
fair use. Sofa Entmt, Inc. v. Dodger Prods., 709 F.3d 1273, 1280 (9th Cir. 2013).
19
20
III.
THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE.

The City is silent as to Mr. Teixeiras showing that its Complaint should be
21
dismissed with prejudice. MTD at 25 (citing, inter alia, Steckman, 143 F.3d at 1298;
22
Burnett, 491 F. Supp. 2d at 971-72; Savage, 2008 U.S. Dist. LEXIS 60545, at *25-
23
24
25
54953.5(b), which requires that members of the public be permitted to view public
meeting videos without charge on equipment made available by the local agency.
16
The only case cited by the City, DC Comics Inc. v. Reel Fantasy, Inc., 696
F.2d
24
(2d
Cir. 1982), is inapposite. There, a stores unlicensed use of DC Comics
26
characters in its advertisements deprived DC of the opportunity to balance the
27 prospect of increased sales against revenue from a license. Id. at 28. As the City is
barred from selling its public records for more than the direct cost of copying them it
28 can neither profit from increased sales nor make money through licensing the works.
20

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26). Nor does it request leave to amend in the event of dismissal, or identify any way
that it could amend to state a valid claim. Dismissal with prejudice is especially
appropriate here because this lawsuit squarely targets Mr. Teixeiras political speech,
raising the danger that the mere pendency of the action will chill the exercise of
First Amendment rights. Franchise Realty Interstate Corp. v. S.F. Local Joint Exec.
Bd. of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976).
As the D.C. Circuit recognized in similar circumstances, [t]he threat of being
put to the defense of a lawsuit brought by a popular public official may be as chilling
to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit
10
itself, especially to advocates of unpopular causes Unless persons desiring to
11
exercise their First Amendment rights are assured freedom from the harassment of
12
lawsuits, they will tend to become self-censors. And to this extent debate on public
13
issues and the conduct of public officials will become less uninhibited, less robust,
14
and less wide-open, for self-censorship affecting the whole public is hardly less
15
virulent for being privately administered. Washington Post Co. v. Keogh, 365 F.2d
16
965, 968 (D.C. Cir. 1966). This meritless, censorious lawsuit should end now.
17
18
IV.
THE CITYS REQUEST FOR FEES SHOULD BE STRICKEN.
If this case does proceed, then the Citys request to recover its attorneys fees
19
should be stricken because it is foreclosed by 17 U.S.C. 412. See MTS at 5-8. The
20
City does not address Mr. Teixeiras argument, and thereby concedes, that it is not
21
entitled to recover its attorneys fees pursuant to Section 505 of the Copyright Act
22
because such fees are not available where, as here, the works at issue were not
23
registered when the infringement commenced or within three months of the works
24
first publication. MTS at 5-8; see, e.g., Said v. Cnty. of San Diego, 2013 WL
25
2120866, at *3 (S.D. Cal. May 15, 2013) ([S]ince Plaintiff has not addressed the
26
merits of Defendants argument, the court assumes that plaintiff concedes this
27
point.). Instead, the City contends that Rule 12(f) does not authorize the striking of
28
the Citys request for attorneys fees, relying on Whittlestone, Inc. v. Handi-Craft
21

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Co., 618 F.3d 970, 974 (9th Cir. 2010). Opp. at 19-20. Whittlestone, however, does
not apply in this case.
In Whittlestone, the Ninth Circuit reversed a district courts decision to strike
the plaintiffs claim for lost profits and consequential damages, holding that the
plaintiffs claims for damages were not encompassed within the categories of matters
that may be stricken pursuant to Rule 12(f), and could not be considered immaterial
because whether these damages are recoverable relates directly to the plaintiffs
underlying claim for relief. 618 F.3d at 974. The court agreed that courts may not
resolve disputed and substantial factual or legal issue[s] in deciding ... a motion to
10
strike. Id. at 973 (citation omitted). The case did not involve a request to strike a
11
request for attorneys fees under Rule 12(f), and the court did not address the issue.
12
Here, unlike the damages requested in Whittlestone, the Citys request for
13
attorneys fees does not relate[] directly to the plaintiffs underlying claim for
14
relief. Id. at 974. To the contrary, the fee request is ancillary to the Citys copyright
15
infringement claim. See United States v. Ford, 650 F.2d 1141, 1144 (9th Cir. 1981)
16
(the question of attorneys fees is ancillary to the underlying action and survives
17
independently under the Courts equitable jurisdiction.). Indeed, in his Motion to
18
Strike, Mr. Teixeira included several cases, which the City ignores in its Opposition,
19
demonstrating that courts have routinely struck requests for attorneys fees post-
20
Whittlestone. See MTS at 4-5 (citing, inter alia, N. Cal. River Watch v. Fluor Corp.,
21
2014 U.S. Dist. LEXIS 141198, at *2 n.1, 10-11 (N.D. Cal. Oct. 2, 2014) ([b]ecause
22
the fees requests do not comprise any one cause of action, a motion to strike is the
23
appropriate vehicle to address them.); Dos Santos v. Telemundo Commcns Grp.,
24
LLC, 2012 WL 9503003, at *7 (C.D. Cal. Dec. 19, 2012) (striking request for
25
attorneys fees for failure to satisfy Section 412 requirements)).
26
Further, Whittlestone also does not apply because the Court need not decide
27
any disputed factual or legal issues. As mentioned above, the City does not dispute
28
nor can it that Section 412 of the Copyright Act bars it from recovering its
22

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attorneys fees in this action because the Copyright Office received the Citys
copyright registrations on February 3, 2015, which is after the commencement of the
purported infringement, and beyond three months after first publication of the works.
See Supplemental Request for Judicial Notice (SRJN), Dkt. # 16, at 1; Ex. G.
The City concedes that these copyright registration applications are
incorporated by reference into the Complaint, and it has not opposed the SRJN. Opp.
at 23; Cmplt. 14. Consequently, not only has the City failed to allege that it timely
registered the underlying works here, but it is apparent from the Complaint itself that
it did not do so. See MTS at 7-8. Therefore, the Court should grant Mr. Teixeiras
10
Motion and strike the Citys request for attorneys fees with prejudice.
Alternatively, if the Court finds that Mr. Teixeiras Motion is in substance a
11
12
Rule 12(b)(6) motion, but is incorrectly denominated as a Rule 12(f) motion, [the
13
Court] may convert the improperly designated Rule 12(f) motion into a Rule 12(b)(6)
14
motion. Consumer Solutions REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1021
15
(N.D. Cal. 2009) (citations omitted). See also Yeager v. Corr. Corp. of Am., 2012
16
U.S. Dist. LEXIS 43029, at *6, 11-12 (E.D. Cal. Mar. 28, 2012) (converting Rule
17
12(f) motion to Rule 12(b)(6) motion and striking request for punitive damages).
Even under the Rule 12(b)(6) standard, the Citys request for attorneys fees
18
19
fails as a matter of law. As discussed above, the City has waived any argument to the
20
contrary by ignoring the substance of Mr. Teixeiras Motion. See Said, 2013 WL
21
2120866, at *3. Moreover, the City has not alleged that it timely registered the
22
underlying works as required under Section 412 and Section 505. MTS at 3. And
23
the copyright registration applications incorporated by reference in the Complaint
24
show conclusively that it failed to do so. Id. at 7-8; SRJN at 1, Ex. G. As a result, if
25
the Court converts Mr. Teixeiras Motion to Strike into a Motion to Dismiss, the
26
Citys request for attorneys fees should be dismissed without leave to amend.
27
///
28
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V.
1
2
CONCLUSION
With this lawsuit, the City seeks to impose speech restrictions under
copyright laws meant to foster rather than repress free expression. Garcia, 2015 WL
2343586, at *1. The City has no cognizable copyright interest in videos of its City
Council public hearings and is impermissibly using the Copyright Act to punish Mr.
Teixeira for exercising his First Amendment right to criticize public officials. The
very pendency of this litigation is chilling constitutionally protected speech. Mr.
Teixeira respectfully requests that this Court bring a swift end to this action by
dismissing the Citys Complaint in its entirety, with prejudice.
10
DATED: June 5, 2015
11
12
13

THOMAS R. BURKE
DAN LAIDMAN
DIANA PALACIOS
By: /s/ Dan Laidman
Dan Laidman
14
15
Attorneys for Defendant

Joseph Teixeira
16
17
18
19
20
21
22
23
24
25
26
27
28
24

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Consolidated Motion To Dismiss

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Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 1 of 33 Page ID #:218

DAVIS WRIGHT TREMAINE LLP

DAVIS WRIGHT TREMAINE LLP

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CITY OF INGLEWOOD, a public entity, )

Case No. 2:15-cv-01815-MWF-MRW

Defendant Joseph Teixeira respectfully submits this Consolidated Reply in

Support of his Motion to Dismiss (MTD) the Complaint of plaintiff City of

Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 2 of 33 Page ID #:219

SUMMARY OF ARGUMENT ...................................................................... 1

THE CITYS COMPLAINT IS BARRED AS A MATTER OF LAW......... 3

The City Cannot Copyright Its Public Meeting Videos Under

Mr. Teixeiras Use Of Clips From City Council Meetings In His

Fair Use Applies To Mr. Teixeiras Videos As A

The Allegedly Infringing Videos Are Incorporated By

Dismissal At The Pleading Stage Is Proper In This

Each Statutory Factor Favors A Finding Of Fair Use. ............ 15

The Purpose And Character Of The Use ....................... 16

The Nature Of The Allegedly Copyrighted Works ....... 18

The Amount And Substantiality Used ........................... 18

The Effect On The Market ............................................. 19

THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE. ...... 20

THE CITYS REQUEST FOR FEES SHOULD BE STRICKEN. ............. 21

REPLY IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 3 of 33 Page ID #:220

Adjmi v. DLT Entertainment Ltd.,

Am. Prairie Const. Co. v. Hoich,

American Title Ins. Co. v. Lacelaw Corp.,

Arrow Productions, LTD. v. Weinstein Co. LLC,

Basic Books, Inc. v. Kinkos Graphics Corp.,

Burnett v. Twentieth Century Fox Film Corp.,

Burrow-Giles Lithographic Co. v. Sarony,

Campbell v. Acuff-Rose Music, Inc.,

REPLY IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 4 of 33 Page ID #:221

Campbell v. Walt Disney Co.,

Canal+ Image UK Ltd. v. Lutvak,

Consumer Solutions REO, LLC v. Hillery,

County of Santa Clara v. Superior Court,

Daly v. Viacom, Inc.,

Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,

REPLY IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 5 of 33 Page ID #:222

Garcia v. Google, Inc.,

Gonzalez v. Planned Parenthood of L.A.,

Hancock v. Hartford Life & Accident Ins. Co.,

Hayes v. County of San Diego,

Infinity Broadcast Corp. v. Kirkwood,

Korematsu v. United States,

LaSalle Nat. Bank v. First Connecticut Holding Group, L.L.C. XXIII,

REPLY IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-01815-MWF-MRW Document 18 Filed 06/05/15 Page 6 of 33 Page ID #:223

Mattel Inc. v. Walking Mt. Prods.,

Meeker v. Belridge Water Storage Dist.,

New York v. United States,

Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc.,

North County Parents Org. v. Dept of Education,